IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 24th April, 2017 SUIT NO.:NICN/EN/140/2012
BETWEEN:
EMEKA EUGENE ONUNEKWU===============CLAIMANT
AND
- IDF TRADING COMPANY
- GREAT BRANDS NIGERIA LTD========DEFENDANTS
REPRESENTATION:
- Hon. NwabuezeUgwu Esq. appeared with OdinkenmaEwo and Ujunwa Nwobodo (Miss) for the Claimant.
- S. Chinaka Esq. appeared for the Defendants.
JUDGMENT
The Claimant in this action took out a Complaint dated 26th July, 2012 on the same date. Endorsed on the Complaint and in paragraph 38 of the Statement of Facts are the following reliefs he seeks against the defendants:
- A DECLARATION of the Honourable Court that the medical bills of the Claimant is entitled to be paid by the Defendants for all the injuries sustained in the course of the duties given him by the Defendants, pursuant to the employment of the Claimant.
- A DECLARATION of the Honourable Court that the Claimant is entitled to the remedies sought from the defendants.
- A PERPETUAL INJUNCTION restraining the Defendants, their privies, agents, and, or servants from reprimanding, dismissing from employment, or howsoever tampering with the employment of the Claimant on account of this suit, or its aftermath.
- SPECIAL DAMAGES of N1,006,300 (One Million Six Thousand, three Hundred Naira only), from the Defendants to the Claimant being the medical expenses already made by the Claimant towards the treatment of the injury sustained while on Defendant’s duty.
- SPECIAL DAMAGES of N2,781,000 (Two Million, Seven Hundred and Eighty One Thousand Naira) only, from the Defendant to the Claimant, being the cost of replacing Claimant’s six teeth.
- AN ORDER of the Honourable Court that the Defendants should immediately pay to the Claimant his arrears of salary which the said Defendants had stopped since after June 2011.
- AN ORDER of the Honourable Court that the Claimant expenses/costs and his legal practitioner’s fee should be borne by the Defendants.
- GENERAL DAMAGES as the Honourable Court may think just, to defray the cost of continuing to manage the Claimant’s dental problem until it finally seethes, and also for the Claimant’s inconvenience, speech loss, deformity, and social discrimination which results in further mental and psychological trauma for the Claimant.
The said Complaint was accompanied with Evidence on oath of the Claimant as witness, name of the Claimant as witness, list and copies of documents to be relied upon at trial. The Defendants entered appearance dated 5/10/2012 on 9/10/2012 with leave of court. They also filed a Statement of Defence dated 22/1/2013 but was further amended with leave of court granted on 18/06/2013. The Defendants filed witnesses’ statements on oath, list and copies of documents to be relied upon at trial.
The case proceeded to trial with the Claimant giving evidence as CW1 and tendering exhibits C1, C2, C3, C4, C5, C6, C7, C8, C9, C10 and C11.The CW1 was cross examined by the learned Defendants’ counsel during which Exhibit C12 was tendered through the CW1 and admitted by the Honourable Court. Thereafter the Defendants opened their defence wherein they called two witnesses, DW1 and DW2. Exhibits D1, D2, D3, D4 and D5 were tendered through the DW1 and was thereafter cross examined by the learned Claimant’s counsel.
Upon conclusion of trial parties filed their respective final written addresses. The learned counsel for the Defendants filed his own final written address dated 11th April, 2016 on the 18th day of April, 2016. Thereafter the Claimant’s counsel filed his own final written address dated 20th day of June 2016 on 22nd day of September, 2016. Then the Defendants’ counsel filed a reply on points of law dated 11th October, 2016 on the 13th day of October, 2016. The said final written addresses were all adopted by the parties.
In his final written address learned Defendants’ counsel formulated and argued the following issues for the court’s determination:
- From the pleadings and evidence in this case, whether the Claimant has proved the occurrence of the accident that gave rise to his alleged injuries? And if so, whether the alleged accident occurred in the course of performance of the Claimant’s official duties for the 1st Defendant?
- Whether the Claimant has proved that his injuries were as a result of any breach of a duty of care owed him by the defendants to justify the award of damages in this case against the defendant for negligence? And if so, whether the Claimant has proved the damages claimed in this case?
- Whether the Claimant is entitled to an injunctive relief and order for payment of accrued salaries even after the termination of his employment by the 1st Defendant?
On his own part, the learned counsel for the Claimant formulated and argued the following issues for the determination of the Honourable Court in this suit:
- Whether the Claimant has not discharged the onus of proof placed upon him in this matter and also attained the standard of proof required of him therein?
- Whether in the circumstance of the accident subject-matter of this suit, the Claimant is not entitled to the remedy of special damages from the Defendants?
- Whether the stoppage of Claimant’s salary in the manner in which it was done even without notice to him of any such action was right and sustainable and if not, he is not entitled to be reinstated?
- Whether the admissions elicited from PW2 (sic) under cross-examination are not sustainable and if they are, whether it does not strengthen the case of the Claimant?
- Whether the Claim of General Damages does not enure to the claimant?
- Whether in the circumstance, the defendants owe the claimant duty of care?
I have carefully considered the processes filed, evidence led, as well as the arguments and submissions of parties in this case. The issues for determination of this suit are as follows:
- Whether from the pleadings and evidence in this case, the Claimant has proved the occurrence of the accident that gave rise to his alleged injuries? And if so, whether the alleged accident occurred in the course of performance of the Claimant’s official duties for the 1stDefendant?
- Whether in the circumstance, the Claimant has proved that his injuries were as a result of any breach of duty of care owed him by the defendants to justify the award of damages against the defendant for negligence?
- Whether the stoppage of Claimant’s salary in the manner in which it was done even without notice to him of any such action was right and sustainable and if not, he is not entitled to be reinstated?
- Whether the Claimant is entitled to his reliefs?
The facts of the case briefly put are that the Claimant was an employee of the defendants as a motorcycle sales representative in Enugu since February, 2004. The office address is No. 10 Colliery Avenue, G.R.A. Enugu. The claimant was given a motorcycle to work with on the day of his employment, i.e. February 14, 2004. It is part of the claimant’s case that on 9th day of October, 2010 he was at the market when he was called on phone by the Area Manager of the 2nd Defendant, and directed to come for a meeting at their Enugu office. That it was while responding to the said phone call for the meeting that the Claimant had an accident in which he suffered injuries to his teeth. The Claimant further pleaded that the injuries he suffered were severe: he lost his four teeth, two are now shaking and one is changing colour, and he could neither eat nor drink water for three days after the said incident. The claimant reported the incident to his superiors in the office and was asked to proceed to the company’s hospital, PEENOK’s Hospital, Zik Avenue, Enugu for medical treatment. At PEENOK Hospital he was informed that the hospital does not treat teeth related ailments and so was referred to Eastern Nigeria Medical Centre, Off Zik Avenue in Enugu. Even at the Eastern Nigeria Hospital the Claimant could not be treated because the cost involved was going to be higher than the limit set by the company for its staff.
The Claimant went back to the office and was told that his case would be forwarded to the Head office of the company for approval and was advised by the Area Manager to proceed to any other hospital whose bills he could afford. He thereafter went to Government owned Park Lane Hospital in Enugu to obtain medical attention. At the Park Lane Hospital the Claimant was seen by a medical doctor who prescribed drugs for him. The prescribed drugs were not available at the Park Lane Hospital and so he was advised by a nurse to proceed to one Austin Graces Dental Clinic for proper care by a Dentistry expert. At the said Austin Grace Dental Clinic drugs were prescribed for him and he had to borrow heavily in order to keep his deteriorating health in check.The Claimant had incurred medical expenses of N1,006,300.00 and when he approached the Area Manager with the bills he was told there was no response on his case from the Head Office of the Company. The Claimant further pleaded that he would require a further sum of Two Million, Seven Hundred and Eighty One Thousand Naira Only (N2, 781,000.00) to have his six teeth replaced altogether. Here too his effort to get the company to yield to his request failed. He has met with the same response of the inability of the Headquarters to reply to mails sent.
The Claimant therefore did not receive any help from the defendants towards settling the money he borrowed to treat his teeth or fixing the six teeth that require replacement. The Claimant further pleaded that he was arrested and detained at the behest of the defendants simply because he requested for his tax clearance certificate from the defendants. He therefore approached this Honourable Court for the reliefs earlier on stated in this Judgment.
On their own part, the defendants denied knowledge of the occurrence of any accident involving the Claimant on the 9th of October, 2010 or on any other date in the course of his employment with them. They pleaded that he did not even come to work on that day of the purported accident. They further pleaded that the Claimant was coming to work and performing his duties after the purported accident without any complaint or injury and nor was any injury noticed on him. The defendants further averred that the claimant was regularly using the same motorcycle after the date of the accident for his official duties without any complaint of any accident or any application for medical leave to enable him meet up with any appointment with his doctors regarding the accident. That on the 11th day of October, 2011, a year after the purported accident, the Claimant was dismissed for stealing of 1st defendant’s goods and money. They pleaded that the Claimant is currently facing trial before the Chief Magistrates’ Court Enugu for Conspiracy and Stealing.
In proof of his claims, the Claimant in addition to his statement on oath tendered the following documents as exhibits:
- Exhibit C1-CHIDY PAT MEDICINE Cash Invoice Number 0031 dated 9/10/10 for the sum of 142,900.00; CHIDY PAT MEDICINE Cash Invoice Number 0014 dated 1/12/10 for the sum of N142,900.00; CHIDY PAT MEDICINE Cash Invoice Number 0035 dated 2/12/10 for the sum of N226,900.00; CHIDY PAT MEDICINE Cash Invoice Number 0406 dated 3/11/11 for the sum of N142,900.00; CHIDY PAT MEDICINE Cash Invoice Number 0034 dated 27/10/10 for the sum of N64,900.00; CHIDY PAT MEDICINE Cash Invoice Number 0040 dated 15/5/11 for the sum of N142,900.00; CHIDY PAT MEDICINE Cash Invoice Number 0009 dated 27/2/11 for the sum of 142,900.00;
- Exhibit C2-Three (3) pictures with negatives of the claimant’s mouth showing lost teeth.
- Exhibit C3-An appointment card for ESUT TEACHING HOSPITAL PARKLANE ENUGU Number 103893 with the name Onu Emeka and dated 9/10/2010. Attached to it is a prescription form dated 09/10/10 with prescribed drugs on it.
- Exhibit C4, a photocopy of ID Card of Private Motorcycle Operators issued by Enugu State of Nigeria, Ministry of Transport, Enugu.
- Exhibit C5-Appointment card of AUSTIN GRACES DENTAL CLINIC with name of Onunekwu Emeka and number 11/13514 written on it.
- Exhibit C6-A handwritten medical report on the Claimant indicating the need for teeth replacement that would cost the sum of N2, 781,000.00, dated 5/7/2011.
- Exhibit C7-a letter from Claimant’s Solicitor to the 1st Defendant’s Chief Executive Officer dated Monday, July 04, 2011 titled “IN RE: THE ACCIDENT THAT MAIMED OUR CLIENT WHILE ON DUTY-A DEMAND FOR PAYMENT OF COMPENSATION & DAMAGES”.
- Exhibit C8-A letter from the 1st Defendant’s Legal Services Manager to the Claimant’s Solicitor, dated 19th July, 2011 and titled “RE: THE ACCIDENT THAT MAIMED OUR CLIENT WHILE ON DUTY-DEMAND FOR PAYMENT OF COMPENSATION AND DAMAGES”.
- Exhibit C9-A letter of confirmation of appointment of the Claimant with the 1st Defendant, dated 1st August, 2006.
- Exhibit C10-A letter of Employment of the Claimant with the 1st defendant, dated 19th July 2004.
- Exhibit C12-A charge sheet from the Magistrate’s Court of Enugu State, Holden at Enugu with Charge Number MEN/658c/2011 showing date of arraignment of the accused persons as 3-11-2011.
Turning to the issues for determination, on the first issue which is: “whether from the pleadings and evidence in this case, the Claimant has proved the occurrence of the accident that gave rise to his alleged injuries? And if so, whether the alleged accident occurred in the course of performance of the Claimant’s official duties for the 1stDefendant?”, the Claimant’s case is that there was an accident on the 9th of October, 2010. In his pleadings, particularly paragraphs 7, 8, 9, 10, 11, 12 and 13 of the Statement of facts he asserted occurrence of the accident as well as the facts and circumstances that led to it in the following words:
- As such Motorcycle Sales Representative, my job schedule is to work every day from Monday till Saturday weekly from 7am until 5pm, but most days, I would work far beyond the said 5pm as I would not close until I have returned from where I went to supply cigarettes and finished paying in the money I collected from my customers into the bank account of the company.
- In furtherance of the last foregoing paragraph, my work schedule begins each day with my collection of cigarettes of various brands from the storekeeper, I’ll then move round from Awkunanaw Enugu Market, to Eke Agbani, to Afor Ugbawka, to Nara etcetera, to sell them to retailers, grocers, and petty distributors, and in turn collect money from them, and pay same into the bank account of the 1stDefendant.
- In furtherance of the above, I would introduce the product to those who were not buying these cigarettes, convince them that they are good, and encourage them to stock the products.
- To achieve all the above, I was given a motorcycle by the 1stDefendant on the day I was employed, that is to say; February 14, 2004, to enable me carry out my duties.
- On October 09, 2010, I was at the market when I was called on phone by the Area Manager of the 2ndDefendant, and directed to come for a meeting at our Enugu office.
- The said Area Manager is the officer in charge of sales in Enugu, Nsukka, Abakaliki, Awka, and Onitsha, and usually gives me instructions on sales; I immediately left the market and headed to the office of the Defendants in Enugu for the said meeting.
- On my way, I was involved in an auto crash with an on-coming vehicle, which said crash bruised my face drastically.
These assertions were repeated in paragraphs 7, 8, 9, 10, 11, 12 and 13 of the Statement on oath of the CW1 as his evidence in chief. The Defendants denied that the accident ever took place challenging the Claimant to the proof of same. On the days of work of the claimant, the defendants averred that the Claimant worked Mondays to Fridays from 8am to 3pm and scarcely on Saturdays from 8am to 1.30pm. See paragraph 6 of the Further Statement of defence filed on 18th June 2013; and paragraph 6 of the Statement on oath of DW1, Israel Onyinobi Asije. Most importantly, the defendants denied that the claimant ever came to work on the 9th of October, 2010 and that he did notnotify them of his whereabouts. The defendants further pleaded that not only did the claimant not come to work on that 9th of October, 2010 but that he was not called for any meeting as he averred in paragraph 13 of the Statement of Facts. See paragraph 13 of the Further Amended Statement of Defence and paragraph 13 of the Statement on oath of DW1.
Furthermore, the defendants in paragraph 14 of the Further Amended Statement of Defence maintained that there was no accident involving the Claimant on the 9/10/2010 and averred further that there was no police investigation report on the alleged accident, no eye witness account of it, no information by the police to the 1st defendant about its motorcycle being involved in an accident on that date and that the motorcycle itself had remained intact and in use since the alleged accident. They added in paragraph 15 of the Further Amended Statement of Defence that there was no report till date of the accident to the defendants or the Police by the Claimant. All these averments were attested to in the DW1’s evidence in chief.
Under cross examination, the Claimant was asked by the learned Defendants counsel on the date and time of the accident as follows:
Question: What is the date and time of the accident you had?
CW1: The date was 9th October, 2010 in the morning. The accident destroyed the frontage of the machine. I did not take the photograph of the machine, but I called the Manager and they came and took the machine away. The registration number of the machine, I cannot remember it.
The company repaired the machine.
After the incident I went to the hospital. I went to the office before going to the hospital. I went through the office through the assistance of somebody who took me there with his car.
The Claimant after giving details of the incident went on to state in his evidence under cross examination that “the accident was caused by the driver and so it was his fault and that was why he ran away. I do not know the vehicle or its type or registration number.” He added that the accident was not reported to any government agency.
In his submission the learned counsel for the claimant argued that the Claimant has made his case on the issue of the accident as well as the liability of the defendants to him over the cost of the treatment for the injuries sustained.
On his part however, the learned defendants counsel submitted that the claimant has not proved that the accident in question actually took place. The learned counsel for the defendants’ argument is that the claimant has not discharged the onus of pleading and proving the alleged accident; and how and why the negligence occurred. He referred the court to the case of Julius Berger (Nig) Plc vs Mrs DolapoOgundehin (2013) A FWLR (Pt. 676) 497 and Shehu vs Afere (1998) 7 NWLR (Pt. 556) 115. In Shehu vs Afere (supra), the point was made by the Court of Appeal that a party has the duty to state all material facts of the accident describing clearly what happened and how the collision or accident happened. That particulars of the negligence must be fully stated.
Having considered the pleadings and evidence led, as well as the arguments and submissions of the parties on the issue at hand, it is quite clear to me that the Claimant has not pleaded the material facts of the accident to enable the court to make the necessary finding on same. The pleading of paragraph 13 of the Statement of Facts is only as follows:
On his way, the claimant was involved in an auto-crash with an oncoming vehicle, which said crash bruised his face drastically.
There is no pleading and evidence of facts that show where, how and why the accident happened. The pleaded fact above refers to bruises to the face which were termed drastic. However, a careful look at Exhibit C2, the picture of the face and lost teeth of the claimant, does not show any evidence of bruises or even scars of same on the face of the Claimant. But what is more pertinent is the absence of any credible evidence from the claimant which shows that he in fact reported the accident to any officer of the defendants and the steps that were taken thereafter. What he has placed before the court is his narration of the alleged accident and the fact that he verbally reported to the Defendants’ Area and Regional Managers respectively. He was then verbally referred to Peenok Hospital for treatment. There is no document whatsoever to back up all these narratives of the claimant.
Furthermore, when Peenok Hospital said it could not treat him, he was referred to Eastern Nigeria Medical Centre, which also turned him down on the ground that the cost of treatment would exceed what the company could pay on his behalf. He was then forced to go back to the Area Manager who only said he would get in touch with the Head Office in Lagos on his behalf. The claimant on his own decided to v
